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Legitimate Expectation Comparison Notes

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Legitimate Expectations Comparison --- Schonberg Generally?UK legitimate expectations [?] EU legitimate expectations o Narrow conception of objectively reasonable expectations o Deference to administration's balancing of public<>individual interests In all 3 systems, very little protection for ultra vires representations o In EU & France, reasonable protection for ultra vires {4} decisions but none for {1-3} representations o In UK, essentially similar protections for decisions & representations, but very weak French system doesn't have doctrine of LE but fills with equality, damages, and other doctrines o But patchwork of doctrines still produces unfairness o Seems like resistance to 'balancing' or discretionary approaches by the court --- but given searching review of fact & law, seems unjustified

Suggestions for reform
---lawful representations
? UK --- replace Wednesbury unreasonableness with proportionality approach to determining whether has been abuse of power o Raises some issues with parliamentary sovereignty in UK
? Also argument from judicial competence --- judges in UK recruited from the bar instead of from civil servants in France
--- not as well placed to make policy determinations?
? BUT civil servants aren't elected either --- at least judges have some democratic legitimacy via appointment o Coughlan approach of balancing is more suitable than proportionality (requires identification of suitability, necessity & overall balance)
---ultra vires representations
? Representations shouldn't be disregarded simply because ultra vires o IE legality is countervailed by other considerations o Balancing approach of EU re ultra vires decisions could be more broadly applied
? Consider utilisation of damages as in France as alternative UK Historical context of deference
? Constitutional source of deference --- parliamentary sovereignty
? Representations {1}-{3} historically governed by various principles: estoppel, Wednesbury unreasonableness, abuse of process, and now legitimate expectations (substantive and then procedural)


o Only relatively recently that debate resolved on whether LE has a place, whether extends to substantive LEs, and if so whether substantive LE is independent from or just a head of unreasonableness Traditionally characterised by level of deference to administrative administration o Not for the courts to balance policy o Manifestations
? Narrow --- LE just a head of W unreasonableness ---
Hargreaves (change in prisoners release policy)
? Less narrow --- will only interfere if disappointing expectation amounts to abuse of power --- Preston (IRC resiling from interest relief deal = abuse of power) Only post-Coughlan that willing to take broader view o Hamble Fisheries rejected as 'heresy' in Hargreaves; but Hargreaves distinguished in Coughlan as general shift in policy Still manifested in reluctance to venture into {4} general shifts in policy

Other means of solving problem
? Abuse of process --- criminal prosecution may be rejected if clearly unfair eg because of delay or if prosecution represented that would not proceed o Dean (youth treated as witness, assured would not be prosecuted, assisted police --- then prosecuted ? abuse of process) France
{4} Decisions <> {1-3} Representations
? Decision = acte administrative --- binding subject to principle of intangibilite
o Binding if lawful & constitutive of rights (creatrice de droits) o If unlawful & constitutive, binding once 2-month time-limit passes
? Representation = faits juridiques (legally relevant facts) o Administration may have to compensate loss, but not obliged to honour representations o Similar justification to UK --- flexibility of executive & legality of government: Compagnie franco-algerienne o EG Bouveret (quit job in reliance on representation of employment ?
liable to damages but not binding)
? Doctrine of LE directly rejected --- Rouquette (1999) o Creative inferior TAs had attempted but stamped out by CE
? Subject to general principle of equal treatment (egalite de traitement) o Applies mainly to {2} departure from policy in particular case Contextual reasons for rejecting LE
? Freedom of administration deeply embedded --- recognised itself as a principe generaux --- LE would be inconsistent
? French public law prefers defined rules o Akin to codification o In relation to {4} injustice created by ultra vires rule restricted by time limit rather than discretionary balancing

?o Courts don't give long reasoned judgments that lend themselves to balancing factors Other methods of compensating for lack of LEs o Statutory provisions in tax & planning o Generous principles of administrative liability to damages (notably absent in UK context) --- individuals will be compensated so don't need to enforce LE French droit administratif = independently developed by courts o Unusual for France o Resistant to external influence by EU/UK

Rejection of doctrine of confiance legitime
? Principle recognised by TA Strasbourg in Entreprise Transports Freymuth (1994) o F imported refuse from Germany o 1975 law provided for prohibition of refuse by agreement between States o 1990 regulation introduced need for authorisation for import - but did not prohibit any particular category o F obtained authorisation o 1992 regulation prohibited importation of certain categories of refuse
? Exception allowed importation provided there was a scheme for sale & disposal, but no such scheme in place at the time o F claimed loss of 1/3 of profits & sought damages HELD o TA --- Breach of legitimate expectation - that 1990 regulation would not be suddenly changed with immediate effect & without transitional provisions o Nancy CAA --- did not "destroy any hope" or any "promise" but merely ended danger to environment for reasons of public interest ---
but didn't disavow principle in whole
? Stamped out by CE in Rouquette (1999) (social security change --- LE arose only if implementing EU law --- no reference to such a principle in French law) Other cases addressing same problem
? Administrative bodies confined by own policies: Societe Michel Faure (agency said would only take certain measures in consultation with committee
? acting illegally if without consultation) o = Yabbicon v King (UK, 1899) o Cf. Ville de Limoges (Planning authority may permit derogations from its development plan on a balance of competing interests)
? Administrative bodies bound to respect individual rights created by previous decisions: Credit Foncier o Even if those decisions illegal at the time, if they have later become immune from attack o Similar to legitimate expectation?

EU Conceptually simpler
? Established principles of o Legitimate expectation
? Developed in cases of actual decision
? Extended to representations in Chatillon (1966) (High Authority denied right to make deductions for ferrous scrap ---
argued delegated decision had been made that material was scrap & later revoked ? no formal decision because delegated body no longer had power --- but could still derive some guarantees --- but not made out on the facts) o Equal treatment o Irrevocability of {4} individualised & finalised decisions
? Content of LE doctrine o Whether expectation objectively reasonable --- Nature of representations, individual's knowledge, regulatory context o Balance policy reasons against harm to determine whether 'legitimate'
? BUT generally courts do not substitute judgment as to balancing harm<>policy o Consequences is that rarely upheld in practice o <> makes narrower than UK principle, like old deferential approach
? Institutional context --- reasons for not substituting judgment for its institutions?
? EU not a State

{1} General shift in policy?

Administration mustn't be forced to stagnate BUT sudden changes can offend LE --- argument for regulating manner of change o Transitional provisions o Advance warning

UK --- doubtful whether LE can arise
? Some statements of principle suggesting that there must be 'adequate & clear advance notification'
? BUT in practice difficult to establish o Hargreaves (policy on prisoner's leave varied) --- pre-Coughlan but distinguished in that case on that basis, so reaffirms position
? Sedley LJ in justifying existence of LE doctrine --- won't stagnate administration because no individual can have LE that administration will stagnate for them
? More or less ruled out by Niazi France --- no remedy Principle of mutabilite
? Administration has absolute power to change policy o
? Syndicat national de la meunerie a siegle (prices for rye fixed in 1947, said would apply til 1952 --- less favourable policy adopted in 1950 --- producers had relied on policy ? irrelevant, can change freely --- no remedy) o Query whether this is good principle
? Focus on rights --- no substantive legitimate expectation falling short of right
--- must show that policy has created a right Principle of "legal certainty"
? Principle of legal certainty: KPMG (2006) (CE invalidating whole code regulating company auditors --- ethics code affecting certain contractual obligations --- no transitional provision ? illegal --- annulled) o Part of a shift to be more receptive to comparative law arguments EU?

CNTA (regulation provided for payment of compensation on exports --- C obtained export permit ? C had LE that would not change policy & abolish compensation) Even where LE arises from combination of policies o Mulder (problem with overproduction of milk --- Under Common Agricultural Policy, M stopped sales for 5 years and obtained premiums --- during that time, quotas changed to be function of previous years --- meant M's quota was 0 ? LE not to be excluded from own profession as a result of acceding to policy)


BUT subject to same restrictions as below o Cannot be foreseeable --- and much expected of traders in anticipating regulatory change o Still harsh approach taken to balancing public<>individual interests

{2} Departure from policy in individual case Dual rationale --- legitimate expectations & equality
? It is the equality aspect that differentiates this from {1} general shift in policy
--- so illogical that UK bases solely on LE but makes distinction {1}<>{2}
UK & EU --- Policy (possibly binding) <> Rules (binding)
? Policy can become legally binding rule if sufficiently detailed & specific ---
based on executive prerogative rather than supported by legislation o UK --- Schofield (criminal injuries compensation 'scheme' = rules, not simply policy o EU --- CIRFS (Commission issued detailed 'discipline' on state aid to synthetic fibres industry --- approved French aid even though contrary to 'discipline' ? 'discipline' = rules not policy --- binding) Departure from policy
? UK --- based (mainly) on LE o Gangadeen (criteria for deportation of foreigners with children) o Presume that Coughlan will be extended to this category of case
? France --- based on equality o Credit fonder de France (1970) (once directive on housing grants laid down, equal treatment requires no derogation absent overriding public interest) o BUT high level of deference --- no other decision has followed since 1970
? EU --- draws from French law o Louwage (staff remuneration policy --- but Commission refused 2 employees certain allowances ? even where internal directive not a rule, equality requires adherence)
? In common o If doesn't follow, must give a reason --- in error if simply disregarded o If follows, must properly construe --- although some level of deference to authority Matters falling short of policy
? France --- directives <> circulaires o Policy includes directives (guidelines & criteria for exercise of discretion) o but not circulaires (interpretations of legislative provisions) o Elusive distinction --- label of documents ambiguous & not determinative in any event o Constitutional basis --- Ministers have power to make rules on specific areas but not others --- to make circulaires quasi-binding would effectively confer this power
? Published <> internal o France --- formal requirement that be published in Journal Officiel o UK & EU --- cannot give LE unless knowable o Problem --- doesn't promote open government --- potentially can withhold policies & act in arbitrary way

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